Freedom under the law

In his 1949 lectures titled Freedom under the Law Lord Denning describes ‘the heritage of freedom’ as ‘the greatest heritage of all.’ The lectures highlight the importance of law in safeguarding freedom, especially individual liberty or personal freedom. Lord Denning defines personal freedom as ‘the freedom of every law-abiding citizen to think what he will, to say what he will, and to go where he will on his lawful occasions without let or hindrance from any other persons.’ Personal freedom prevails over all other rights and interests.

Where there is any conflict between the freedom of the individual and any other rights or interests, then no matter how great or powerful those others may be, the freedom of the humblest citizen shall prevail over it.
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​‘But freedom has limits!’ cry the social justice warriors who believe that egalitarian socialist schemes are more important than personal freedom. Freedom under the law is indeed subject to the limits and bounds described by Lord Denning as 'social duty'. But the law is now becoming so preoccupied with entrenching and expanding the limits and bounds of freedom, delineating the content of social duty, that the importance of freedom is lost.

​Rather than safeguarding freedom, the main function of the law is now to implement as many limits and safeguards as possible, to ensure that all the restrictions are in place and that everyone is sticking to their designated roles, being polite and courteous and never causing offence. Regulations, measures, guidelines, and above all the reliance on data and statistics to showcase the success of the new ‘freedom has limits’ social-duty legal framework. Lord Denning’s Freedom under the Law is now translated for modern readers as Social Duty under the Law. Training schemes abound, to teach young students the limits of freedom: what they are not allowed to do, what they are not allowed to say, whom they are not allowed to touch (and why not) and the importance of their social duties.

​The prioritisation of social duty over personal freedom is the opposite of Lord Denning's message in Freedom under the Law​ which is a message about getting the right balance. He identifies two limits on freedom: that individual freedom must ‘be balanced with duties’, and that individual freedom must ‘be matched with social security’. This is, of course, right. The law does not recognise absolute rights, absolute freedoms or absolute power. Lord Denning thought that the law as it then was struck the right balance.

The task is one of getting the right balance. The freedom of the individual, which is so dear to us, has to be balanced with his duty; for, to be sure everyone owes a duty to the society of which he forms a part…

The moral of it all is that a true balance must be kept between personal freedom on the one hand and social security on the other.

​Lord Denning was no admirer of chaos or anarchy. His emphasis on duty is unsurprising coming from a man who was keen to join the army driven by what can only be regarded as a strong sense of duty. He had already lost two beloved brothers in the war and was in possession of a valid exemption from service (‘systolic murmur’ in the heart diagnosed by doctors who probably couldn't bear for this mother to lose a third young son to this war). Yet he was nevertheless so anxious to do his duty that he appealed against his exemption. He recounts in his published memoirs:

We were all anxious to join as soon as we could. No hesitation – not even on my part in spite of the grievous loss the family had already borne. All the keener because of it.
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Freedom is subject to duty because duty matters, but the scale goes down not on the side of duty, but the side of freedom. There must be a strong sense of duty in each of us, for society to function and for freedom to prevail. But it does not follow that duty matters so much as to take priority over freedom. Lord Denning observes that freedom of contract and the right to private property are in English law 'counterbalanced by the duty to use one's property and powers for the good of society as a whole', words which appeal so much to social justice warriors that they forget to read what follows. Lord Denning goes on to observe that this should not be carried so far that 'freedom, as we know it, no longer exists'.

In some foreign countries this [social] duty has been carried to such a pitch that freedom, as we know it, no longer exists. If the people of those countries choose to put up with such a system that is their affair. All that needs to be said about it is that it is not the English view of human society.

​What matters in England is that each man should be free to develop his own personality to the full: and the only duties which should restrict this freedom are those which are necessary to enable everyone else to do the same. Whenever these interests are nicely balanced, the scale goes down on the side of freedom.

Lord Denning was here speaking, as always, 'to the common people of England', speaking plainly of matters which his audience would 'know full well'. Freedom, as we know it, does not depend on complex and highly intricate philosophical debates. Freedom, as we know it, does not have to satisfy the Rawlsian gatekeeping tests of 'public reason'.  Lord Denning certainly did not require anybody to 'educate themselves' by studying convoluted new 'critical' theories, theories that don't actually make any sense, in order to understand what is meant by freedom under the law.

Nor is it the role of the law to enforce the personal sense of moral duty. That the law extends so far now into the sphere of personal duty is attributable to the weakening of codes of personal morality and the breakdown in social trust: the belief now prevails that unless forced to behave better by legal duties people will not behave honourably.

If legal duties become so intrusive that they override personal freedom, subordinating the individual to the amorphous social entity, then the entire purpose of freedom under the law is undermined. The whole purpose of our sense of social duty is to safeguard freedom, so it cannot make sense to say that social duty should override freedom.

The balance between personal freedom and social duty has now gone askew. The ‘duty’ and the ‘social security’ to which Lord Denning ascribes a balancing function now serve not merely to balance, but entirely to displace freedom. Everywhere individual liberty gives way to the ‘duty’ to make safe spaces for those who claim to suffer from vulnerable feelings, and yields to ‘social security’ demands shaped by identity politics. Legislation designed to impose social duties, and to safeguard social feelings, remains silent on the great matter of individual liberty. That is no balance. There can be no ‘balance’ when nothing is ever heard of the importance of freedom.